Does the First Amendment Separate Church and State?

Delaware Senatorial candidate Christine O’Donnell’s recent comment–wondering whether “separation of church and state” is “in the First Amendment”–raises a serious point that has escaped both O’Donnell and her many critics: that Thomas Jefferson’s use of the phrase “separation between Church & State” in an 1802 letter was actually a narrowly focused explanation of the Amendment, whose full breadth probably would displease O’Donnell even more.

It’s true, of course, as many commentators have pointed out, that the words “separation,” “church,” and “state” do not appear in the First Amendment. Instead, the First Amendment’s opening 16 words stipulate that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

Jefferson’s language about the separation of church and state came in a letter he sent to Connecticut’s Danbury Baptist Association in 1802 to thank them for an earlier greeting. He assured the Baptists that he believed, just as they did, “that religion is a matter which lies solely between Man & his God.” This was why, Jefferson wrote, “the whole American people” had ratified a constitutional amendment so “their legislature (Congress) should ‘make no law respecting an establishment of religion, or prohibiting the free exercise thereof,’ thus building a wall of separation between Church & State.”

Jefferson used the phrase “building a wall of separation between Church & State” not to limit the Amendment to this wording–something not within his power in any case–but simply to offer one practical construction of the Amendment’s broad language about “establishment” and “religion.”

Modern constitutional conservatives, such as Chief Justice William Rehnquist (in his 1985 dissent to Wallace v. Jaffree), often argue that the First Amendment meant only to prohibit establishing a national church, while permitting government to pursue other engagements with religion. But this position is hard to reconcile with the fact that Congress, in writing the Amendment, specifically rejected narrow language merely forbidding a national church.

In June 1789 Congress declined a proposal from James Madison for a constitutional amendment about religion that said, “nor shall any national religion be established.” In September 1789, Congress rejected several additional proposals for a narrow religion amendment. These would have prohibited establishing “one religious sect or society in preference to others,” or “establishing any religious sect or society,” or “establishing any particular denomination of religion in preference to another.”

In the final version of the First Amendment, congressmen and senators used the broader word “religion,” and when discussing the issue of “free exercise” of religion they never limited its meaning to Christianity or Judaism.

No wonder. The new states in the 1790s already exhibited exceptional religious diversity–at least 25 different versions of Christianity, plus Judaism and Islam–and Americans seemed more fascinated than worried about religious diversity. In 1784 Hannah Adams of Medfield, Massachusetts, found a huge audience for her book “Alphabetical Compendium of the Various Sects which have Appeared in the World from the Beginning of the Christian Era to the Present Day.”

Americans also knew that even modes of church establishment could be diverse. In Massachusetts and Connecticut, establishment occurred through a complex combination of state legislation and local option. In the South establishment meant supporting the Church of England (the “Episcopalian” Church after the Revolution), but also could involve suppression. Between 1765 and 1775 Virginia jailed and whipped Baptists to stanch competition with the Church of England. “Multiple establishment” could provide aid to several groups simultaneously, a scheme Patrick Henry proposed for Virginia in 1784, but which the Virginia legislature rejected before passing Jefferson’s broadly tolerant Statute for Religious Freedom in 1786.

Perhaps this is why the 1789 wording of the First Amendment spoke abstractly about “an establishment,” suggesting that the words meant any kind of establishment.

So, yes, the First Amendment did refer to the separation of church and state. Jefferson used the phrase to explain one, but only one, meaning of the first principle in a remarkable two-part Revolutionary-era achievement: that the new federal government would “make no law respecting an establishment of religion” and that it also would guarantee “the free exercise thereof.”

No other nation, much less a new one, had ever dared divorce religion from government so completely, and Congress fittingly used the concepts of “religion,” “establishment,” and “free exercise” broadly, not narrowly.

This is why we still argue about the subject. We actually know a lot about Congress’s precise intent with its broad constructions, although we always want to know more. But mainly we’re still trying to figure out what these concepts mean for us and for our nation today.

Comments

Law School students are the first to learn that it is somewhat dubious to try and infer intent from the Founding Fathers. Each one had a slightly different idea when the compromises were made writing the Constitution. Broadly speaking, there was agreement that the Government would not establish any national religion. Also, it was clear that people were to be free to worship as they please. It does not appear to be correct to assume that these Founding Fathers believed that belief in a Supreme being was somehow unlinked from the basic fabric of the new country. One only has to look at a dollar bill to see that God is well represented and woven into the fabric of the country. It doesn’t mean that the country will not allow you to be an aethiest, but rather, the consensus that God was part of the equation cannot seriously be denied. Conservatives are correct to point out that the Constitution never said anything about separation of church and state. Liberals are quite correct to point to Justice Black’s discussion of this issue in the late 40s when he talked about a Separation of Church and State was to be inferred from the document. In a recent visit to the US Supreme Court where I was taken on a private tour, just outside of the main hearing room are elaborate gates with the Ten Commandments written all over the place. While that may mean nothing more than the artist who choose to do it, it struck me that no one from the Court has asked that it be removed. It was a not so subtle reminder that this nation has never been too far removed from biblical teachings.

Democrats are two faced when they claim they want separation of church and state, but still allow churches to have “special treatment” under the law. When churches are “exempt” from the noise law, which they are in lots of cities and states, the law needs to be changed.

But Councilmember Ed Reyes, Senator Kevin DeLeon, Congressman Becerra, LA County Supervisor Gloria Molina, all who consider themselves Democrats refuse to do nothing to change the “exemption” and “special treatment” that churches get from the noise law, Los Angeles Municipal Code Article 11, section 115.02b.
No “exemptions”. No one or organization is “above the law”. No church bells and/or amplied sound systems. Stop the exemption of churches to disturb the peace. Change the noise law.

Wellness

Carole Bartolotto: The problem with concluding that GMOs are safe is that the argument for their safety rests solely on animal studies. These studies are offered as evidence that the debate over GMOs is over. Nothing could be further from the truth.

Environmentalism

Walker Foley: Elected officials seem to think there’s only one side of this property rights argument. The people who live in these communities have rights too, but the oil companies seem to have the jump on [the politicians’] side of the fence.